Internet Marketing Blog | Branding Iron Marketing, LLC | Bozeman, MT

Terms & Conditions

Branding Iron Marketing, LLC Customer Agreement Terms and Conditions

1. Internet and Design Services; Terms and Conditions:

Customer and Publisher (Branding Iron Marketing, LLC) agree that Publisher will provide the Internet Services, in accordance with these terms conditions. These terms and conditions and all applicable order forms and other separate contracts agreed to by you to buy Publisher’s products and services shall together be referred to as this “Agreement.” The term “Internet Services” means the internet advertising and/or website design services listed on this Agreement. The term “Design” means the graphic design service listed on this Agreement. Additional terms and conditions governing Internet Services and Design services are set forth below and available at www.brandingironmarketingllc.com. The additional terms and conditions applicable to Customer are hereby incorporated into, and are a part of, this Agreement, except that to the extent there is a direct conflict between the terms and conditions of this Agreement and the terms and conditions of additional terms and conditions governing Internet Services or Design services that are applicable to Customer, the additional terms and conditions applicable to Customer will control.

2. No Obligation to Publish:
Publisher reserves the right to reject this agreement, and/or any copy that it deems, in its sole discretion, to be objectionable. Publisher may reject this agreement at any time within twenty (20) business days after delivery of this agreement by Customer to Publisher. Publisher may reject any copy within twenty (20) business days after such copy is submitted by Customer to Publisher.

3. Credit:

Signer authorizes Publisher to check credit history of signer and Customer with bank and trade references and business and/or consumer credit reporting agencies and further authorizes any such credit reporting agency to provide credit information about signer and/or Customer to Publisher. Signer and Customer agree that Publisher may share signer’s and/or Customer’s payment record with credit reporting agencies. Publisher has the right to establish credit limits and terms, require deposits, advance payments (e.g., 50% in advance, full payment in advance) or to cancel this agreement if Customer’s or signer’s, as the case may be, credit history proves to be unsatisfactory, in Publisher’s sole, but commercially reasonable, discretion.

4. Duration of Agreement; AUTOMATIC RENEWAL
With respect to Internet Services, the initial term of this agreement is for 24 months. Thereafter, this agreement will continue in effect with respect to the Internet Services until Publisher or Customer cancels. Any cancellation under this paragraph 4 shall be made in accordance with paragraph 7.

5. Termination of Internet Services:
The change or disconnection of a phone number in an advertisement, or termination of Internet Services by Customer, will not release Customer from its obligations under this agreement.

6. Payment (Internet Services):

A. Customer agrees to pay the amounts listed for Internet Services. B. For Internet Services, Publisher may require full payment in advance or at its discretion may bill Customer monthly or annually, as indicated. C. If Publisher does not receive the full amount invoiced by the due date on the bill, Publisher may assess a late charge not to exceed 1.5% per month of the overdue amount. If customer fails to pay any bill, whether for Internet or any other services, within thirty (30) days of the due date or, in the case of Internet Services, such shorter period as is provided in the Internet Services terms and conditions, Publisher will have the following rights: 1. Publisher may require full and immediate payment of all amounts due under this agreement. 2. Publisher may cancel publication of Customer’s direct mail or design services in any as then unpublished advertising, and 3. Publisher may suspend or cancel the Internet Services. D. Any deposit may be applied to the last payment coming due under this agreement and/or to delinquent balances. E. Customer agrees to pay a $2.00 handling charge for each installment bill issued by Publisher. The handling charges will be waived for Customers on the AutoPay program. F. All payments will be applied first to the oldest balances outstanding.

7. Cancellation/Notices to Publisher:
With respect to Services, other than SEM Services, Customer may cancel this Agreement seven (7) days prior to the establishment of the services agreed upon. With respect to the SEM Services and, Customer may cancel this Agreement effective after the initial three (3) months of SEM Services (as applicable) on twenty (20) days prior notice to Publisher. Customer shall give any written notice to Publisher required by this Agreement by certified mail, return receipt requested, reputable overnight courier or hand delivery, and notices will be deemed to have been given, one (1) day after date of mailing or date of deposit with a reputable overnight courier, or on the day of delivery if delivered by hand. Any such notice shall be addressed to Customer Service, Attn: Cancellations, Branding Iron Marketing, LLC Inc. at 275 Vigilante Trl., Bozeman, MT 59718.

8. Force Majeure:
Publisher shall not be liable to Customer for any failure of the Internet Services resulting from events beyond Publisher’s control, including fire, accident, acts of nature, strike, power or telephone failure or the inability to obtain access to any website included in the Internet Services.

9. Right to Use Trademarks and Photographs; Permits and Licenses; No Endorsement; Indemnification:
A. Customer represents and warrants that it has the right to use any trademark, trade name, or copyrighted material included in any copy submitted to Publisher. Customer also represents and warrants that it has the right to use any artwork, portrait, picture or illustration of a person shown in any copy submitted to Publisher. Customer will notify Publisher, in writing, if Customer should cease to have any such right. Customer assumes sole responsibility for the protection of its intellectual property rights in any writing, pictorial illustration, design, map, photograph, or combination thereof, included in its print advertising or the Internet Services. B. Customer represents and warrants that it holds all necessary permits and licenses to provide the products and services identified in its advertising or in the Internet Services. Customer agrees that it is responsible for ensuring that its advertising and Internet Services comply with any laws or regulations that may be applicable to its business. Customer understands and agrees that Publisher does not approve or endorse any of Customer’s products or services, whether or not identified in Customer’s print advertising or in the Internet Services. C. Customer agrees to indemnify Publisher (and its employees, affiliates and agents) against, and hold Publisher (and its employees, affiliates and agents) harmless from, all liability, claims demands, suits or causes of action, whether or not partially attributable to the negligence of Publisher, and will pay all expenses, including reasonable attorney fees, settlements, and/or judgments, incurred by Publisher in the defense thereof, arising out of Customer’s breach or alleged breach of the foregoing representations and warranties.

10. Successors and Assigns; Entire Agreement:

Customer acknowledges having entered into this agreement without relying upon any promises, statements, estimates, representations, warranties, conditions or other inducements, expressed, implied, oral or written, not specifically set forth herein. This agreement contains the entire understanding between the parties and shall bind the parties and their respective successors and assigns. Customer may not assign its rights hereunder without the prior written consent of Publisher, and no such assignment shall relieve Customer of its liability hereunder.

11. Collection Expense:

In the event Publisher refers Customer’s account to a collection agency or attorney due to a non-payment, Customer will be liable for all of Publisher’s reasonable costs and expenses incurred in connection with Customer’s non-payment, including, without limitation, court costs and reasonable attorneys’ fees up to 25% of the amount of the unpaid account balance (plus interest accrued thereon).

12. Sales Representative Not Authorized to Make Changes:
The sales representative of Publisher has no authority to make any changes in this agreement or to commit Publisher in any manner whatsoever in contradiction to the provisions expressly set forth in this agreement.

13. Miscellaneous:

A. The individual signing this agreement on behalf of Customer represents and warrants that he or she is authorized to sign as an owner, officer, partner, or employee of Customer and that he or she is empowered to bind Customer to the term and conditions contained herein. B. This agreement shall be governed by, and interpreted in accordance with, the laws of the state in which Customer maintains its principal place of business. C. Rates include Sales Tax where applicable. D. If any provision of this agreement is held to be unenforceable, such holding shall in no way invalidate any other provision hereof, and this agreement shall remain in full force and effect. E. This agreement may be executed and delivered in any number of counterparts, and all such counterparts shall constitute the same instrument. Customer understands and agrees that an authentic copy or electronic reproduction of this agreement shall have same force and effect as an original counterpart. F. This agreement supersedes any other verbal or written agreement between Customer and Publisher. This agreement may not be changed except by a writing signed by an authorized signatory of Customer and Publisher. G. IN ANY LEGAL PROCEEDINGS RELATING TO THIS AGREEMENT, PUBLISHER AND CUSTOMER HEREBY AGREE TO WAIVE ANY RIGHTS THEY MAY HAVE TO PARTICIPATE IN ANY CLASS, GROUP OR REPRESENTATIVE PROCEEDING, AND PUBLISHER AND CUSTOMER HEREBY AGREE TO WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY.

14. Authority; Persons Obligated; Signer Obligated:
The signer agrees that he/she has the authority and is signing this agreement (1) in his/her individual capacity, (2) as a representative of the Customer, and (3) as a representative of the entity identified in the advertisement or for whose benefit the advertisement is being purchased (if the entity identified in the advertisement is not the same as the Customer or the signer). By his/her execution of this agreement, the signer personally and individually undertakes and assumes, jointly and severally with the Customer, the full performance of this agreement, including payment of amounts due hereunder.

WEBSITE DEVELOPMENT AND DOMAIN NAMES/URLs – ADDITIONAL TERMS AND CONDITIONS


1. Introduction

These Website Development and Domain Name/URL Additional Terms and Conditions are incorporated into and form a part of the Agreement between Customer and Publisher applicable to the Website Development, Maintenance and Domain Name/URL Services (“Services”) to be provided by Publisher to Customer. In the event of any conflict between these Additional Terms and Conditions and the Terms and Conditions set forth in the Agreement between Customer and Publisher, these Additional Terms and Conditions shall be controlling.

2. Services

Publisher will develop, design and build a custom website (“Website”) for Customer. Publisher will maintain the Website for the duration of the term of the Agreement between Customer and Publisher. Publisher will also purchase a domain name/URL on behalf of Customer.

3. Domain Names/URLs
Once a domain name/URL is acquired by Publisher for Customer it may not be changed or exchanged and Customer will not receive a refund for any domain name/URL Customer decides not to use. The domain name/URL remains the property of Publisher for the entire term of the Agreement between Customer and Publisher. At expiration of the term of the Agreement and upon payment to Publisher of all amounts then owing by Customer and any applicable costs of transferring the domain name/URL from Publisher to Customer, Publisher will transfer the domain name/URL to Customer.

4. Policies

Publisher reserves the right to amend these Additional Terms and Conditions and to establish and revise its standards, policies, practices, specifications, technical requirements and schedules with respect to the Services (collectively, the “Publisher Policies”). Customer agrees that a change in Publisher Policies may be published or linked by or through Publisher and shall not entitle Customer to any reduction in the amounts payable for the Services by Customer to Publisher.

5. Fees

Customer agrees to pay fees for the Services as provided in the Agreement. Fees will include a Website set up fee (if and as shown on the order page of the Agreement) payable upon signing of the Agreement. Advertisers who cancel services prior to the end of their 24-month contract will be charged for an early cancellation fee of $600.00.


6. Website Content and Intellectual Property Rights

All tangible and intangible works of any kind (including, without limitation, text, graphics, images, illustrations, artwork, maps, photographs, fonts, visual and audio recordings, Website, software, codes, HTML and other content, in whatever form or media) designed, developed, created or procured by Publisher in connection with the Services will be the sole and exclusive property of Publisher, except for: (i) “Customer Content,” which means all content that Customer provides to Publisher, including, without limitation, listing information, any trade name, trademark, trade secret, service mark, copyright, patent or other intellectual property right, any URL or domain name and any required disclosure, explanation, rule, term or condition of use related to any Advertising and (ii) any content that Publisher licenses from a third party content provider for use in connection with such Services, including, without limitation, graphics, text and photographs (collectively, “Third Party Content”). The use of any and all Third Party Content will be subject to all restrictions and obligations imposed by the third party provider of such content (“Third Party Restrictions”).

7. Customer Content

Customer agrees that Customer will produce and deliver any and all Customer Content in accordance with all applicable specifications, schedules, guidelines, procedures, deadlines, format and technical requirements as Publisher may establish from time to time (collectively, the “Publisher Schedules”). Customer acknowledges that Customer’s failure to comply with any Publisher Schedule may cause the Services to be delayed or refused and Customer agrees that Publisher will have no liability for any such delay or refusal. If Publisher determines, in the exercise of its sole discretion, that Customer has violated Customer’s obligation to comply with the Publisher Schedules, then Publisher may temporarily and/or permanently suspend its provision of, and Customer’s access to and use of, any Services, in whole or in part, without prior notice.

8. Customer Responsibility

Customer assumes sole responsibility for (i) the protection of the trade names, trademarks, trade secrets, service marks, copyrights, patents and other intellectual property rights in any Customer Content appearing in Advertising or on a Website; (ii) conducting any copyright and trademark searches and other similar activities which may be necessary in relation to any domain name contained in Customer Content (including those that Publisher may register for Customer); and (iii) including appropriate copyright and trademark notices with Customer Content. Customer agrees to ensure the accuracy of all materials provided to Publisher for incorporation on Website including, without limitation, content, claims, warranties, nature of business and contact information for Customer. Customer further agrees that it is responsible for ensuring that the Website conforms to all local, state and Federal laws.

9. Publisher Rights

Customer agrees that Publisher will have the continuing right, in the exercise of its sole discretion, to review, select from or among, revise or reject any Customer Content for any reason, including but not limited to unsatisfactory technical quality, inconsistency with any Publisher Policies, or non-compliance with the Agreement. Notwithstanding such right, Publisher will have no liability whatsoever to Customer or any third party for any Customer Content included in any Advertising or on a Website and Customer shall be solely and exclusively liable therefore. If Customer provides information that is untrue, inaccurate, incomplete, or Publisher has reasonable grounds to suspect that such information is untrue, inaccurate or incomplete, Publisher, at its sole discretion, may suspend or terminate the Services. Publisher has the right to remove any content at its sole discretion. Customer bears all risk associated with the use of any content.

10. Disclaimer and Limitation of Liability

Publisher makes no representation, warranty or guarantee, express or implied, concerning the Website or the Services, except as set forth herein. Publisher expressly disclaims all other warranties, express or implied, including without limitation any warranty of merchantability and fitness for a particular purpose. Publisher will not be liable for any consequential, special, indirect, exemplary, punitive, or other damages whether in contract, tort or any other legal theory, even if advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy. Publisher’s aggregate liability to Customer is limited to amounts paid or payable to Publisher by Customer for the Services giving rise to the claim. Remedies set forth in this section 9 shall be Customer’s sole and exclusive remedies for any claims Customer may have under the Agreement.

11. Indemnification
Customer shall indemnify and defend Publisher, its agents, affiliates, and licensors from all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees and expenses, and third party claim or liability (collectively, “Liabilities”) arising out of Customer’s use of the Services and Website or Customer’s breach of the Agreement. Specifically, Customer agrees to defend, indemnify, and hold harmless Publisher, its agents, affiliates, and licensors from, against, and in respect of: (i) any and all losses, damages or deficiencies resulting from any third party claim in connection with Customer’s Website or the URL and (ii) all costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments, or judgments in respect thereof regardless of the merit thereof, including reasonable attorneys’ fees and expenses.

12. License
Customer hereby grants to Publisher a perpetual, royalty-free, sub-licensable, non-exclusive right and license to use, copy, record, modify, display, publish, perform, prepare derivate works based on and distribute (for Publisher’s sole benefit and in any form or media now known or hereafter developed, and in any and all languages) Customer Content: (i) in connection with the design, development, creation, display and publication of the Website (or any derivative thereof); (ii) in connection with Publisher’s provision of Services; and (iii) in any Publisher marketing or promotional materials. Without limiting the generality of the foregoing, Publisher shall have the right (i) to sub-license to third parties any or all of the rights afforded to Publisher in the preceding sentence and (ii) to license to third parties the right to use, copy, record, modify, display, publish, perform and distribute the Website (and any portions thereof) in any form or media now known or hereafter developed, subject to (a) any Third Party Restrictions governing any Third Party Content contained in the Advertising and (b) such other terms and conditions as Publisher may deem appropriate. Publisher and its third party sub-licensees may use any presently existing and future means of communication or transmission in the exercise of any of the rights and licenses granted above. Customer further grants Publisher the right and license to make a reasonable number of archival or back-up copies of the Website as deemed necessary at Publisher’s sole discretion. Publisher is not responsible for returning Customer files, documents or other items provided by Customer.

13. Customer’s Additional Representations and Warranties

Customer represents, warrants and covenants that Customer has the necessary rights to provide all information required under the Agreement (including all content, data, data feeds, listings, titles, URLs, descriptions) for use as described in the Agreement, and that all such information and all claims, statements, products and services contained or referenced therein: (a) do not violate any law, statute, ordinance, treaty or regulation or policy or guideline of Publisher; (b) do not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) do not breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) are not false, deceptive or misleading; (e) are not defamatory, libelous, slanderous or threatening; and (f) will be free of viruses, worms, bots or other computer programming routines that may potentially damage, interfere with, intercept or expropriate any system data or personal information.

14. Force Majeure
Publisher shall not be liable for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond Publisher’s reasonable control, including, without limitation, fire, flood, acts of nature, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, power outages, supply shortages or the failure of Customer or any third party to perform any commitment relating to the production or delivery of any equipment or material required for Publisher to perform its obligations hereunder.

15. Availability of Services
Publisher shall use commercially reasonable efforts to attempt to provide the Services, including access to Customer’s Website, in a manner that will not disrupt Customer’s business. Customer acknowledges and agrees that from time to time the Website may be inaccessible or inoperable for various reasons, including but not limited to (i) maintenance procedures or repairs performed by Publisher; (ii) equipment failures; (iii) congestion of the network; or (iv) interruption of telecommunication or digital transmission link. Customer acknowledges and agrees that Publisher is not liable for these periodic interruptions in Website availability and further acknowledges that Publisher does not guarantee Website accessibility on a continuous and uninterrupted basis.

16. Suspension or Termination

Publisher reserves the right to deny, terminate, or suspend Services without notice if, in Publisher’s sole discretion, the Services are used by Customer in a manner that violates or may violate any custom, use, practice, rule, law, statute or regulation, and Publisher reserves the right to reject, alter, modify, or remove Customer’s Website, website domain name, URL address, or any website content (including, but not limited to, any language, words, text, photographs, designs, drawings, graphics, images, symbols, or logos) which Publisher in its sole discretion deems to be (i) infringing on a propriety interest of a third party, including without limitation, any copyright, trademark, domain registration right, trade secret, or patent right, or (ii) stating or implying that Publisher endorses the Customer’s products or services, or (iii) illegal, pornographic or obscene. Publisher may, in its sole and exclusive discretion, suspend or terminate Customer’s Services and take down Customer’s Website without notice if Customer violates any provision of the Agreement or these Additional Terms and Conditions.

17. Additional Publisher Rights

Publisher shall have the right to display Customer’s Website in marketing and promotional materials and on Publisher’s website. Publisher reserves the right to include link to Publisher’s website on Customer’s Website.

Video Advertising Additional Terms and Conditions

1. Product Summary:
Video ads are the perfect solution for businesses whose physical location, services, products and employees can say it all. Publisher offers several video ad product options:

Custom Video Ads
Custom video ads can combine on-camera interviews, customer testimonials, facility tours, live product demos and customer interaction to create a unique, professionally-produced, commercial quality video ad. Custom video ads can be either 30 or 60 seconds in length.

PhotoMotion Video Ads

PhotoMotion video ads are an easier to produce, cost-effective video product. PhotoMotion video ads combine customer supplied photos, brochures and website images with panning and scanning techniques, background music, professional voice over and basic animation, resulting in a close to ‘live’ video feeling. Shooting new video is not necessary. PhotoMotion videos ads are up to 30 seconds in length.

Customer Supplied Video ads

Advertisers may supply their own video commercials. Customer-supplied videos are subject to approval by Publisher for content.
Customer supplied videos must meet the following technical requirements: up to 5M file size; up to 300 kbps; standard DVD format or any other video codec format; and 720 x 480 resolution.

2. What the User Will See:
A link to the video ad will be attached to your website. When the user clicks on the link, the video ad will begin to play alongside the other information about your business. The video player look and feel and the video link location, size and design will be determined by Publisher and may change from time to time.

3. Custom Videos:

Location of the Shoot
Only one location is allowed in the video shoot. Multiple locations will involve an additional charge.
Creative Control; Delivery
Publisher has overall creative control of the video content. Advertisers can expect to see their completed Custom video ads approximately 30 business days after the day of the shoot. Changes will not be available for any custom video ad, except for factual errors found.
Video Preview
Publisher will provide Customer with email notification and a link to preview the video ad before it goes online. Changes will only be allowed to correct factual errors. Approximately five business days after email notification the video ad will “go live” on website.
Video Ownership
At the end of the 12-month contract, Customer will obtain ownership of the finished video ad. Such ownership includes a royalty-free license to the video ad background music and Publisher – provided graphics and images (solely for use in the video ad). The video ad is subject to a permanent license in favor of Publisher to use all or any portion of the video ad in Publisher’s business. There will be additional charges for an encoded copy of the video ad or an uncompressed high quality copy of the video ad.
Professional Script and Voice Over
Publisher will provide professional script and voice over services for Custom video ads.
Re-Shoot
An advertiser may shoot a replacement Custom video ad any time within the 12-month contract period for an additional charge of $500.00 unless otherwise outlined as part of Publisher SEO services.
Multiple Shoot Locations
One shoot location is included in the Custom video ad price. Multiple location options will be available for an additional charge of $150.00 per added location within a 15 minute drive of the first location.

4. Video Ad Contract Cancellation Policy:
All video ad products require an initial 24-month contract. Advertisers who cancel their Custom video ad product prior to the end of the 24-month contract term will be charged an early cancellation fee of $500.00 to cover Publisher’s expenses in producing the video ad. Advertisers who cancel their PhotoMotion video ad product prior to the end of their 24-month contract will be charged for an early cancellation fee of $250.00. Cancellation of customer supplied video ad will not result in a cancellation fee.

5. Video Ad Copies
Upon request Publisher will provide Customer with the completed Custom video ad, PhotoMotion video ad or Customer supplied video.

6. Watermark:
The Branding Iron Marketing, LLC watermark will be added to ALL Custom video ads, PhotoMotion video ads and Customer supplied video ads.

7. Right to Use Trademarks and Images; Permits and Licenses; No Endorsement; Indemnification:

The right to use any trademark, trade name, or copyrighted material include in any video ad is the responsibility of Customer. Customer also must secure the right to use any artwork or illustration, or the portrait or picture of any person shown in the video ad. Customer will notify Publisher, in writing, if Customer should cease to have any such right. Customer assumes sole responsibility for the protection of its intellectual property included in its video ad. Customer represents and warrants that it holds all necessary permits and licenses to provide the products and services identified in the video ad. Customer agrees that it is responsible for ensuring that its video ad complies with any laws or regulations that may be applicable to its business. Customer understands and agrees that Publisher does not approve or endorse any of Customer’s products or services identified in the video ad. Customer agrees to indemnify Publisher (and its employees, affiliates and agents) against, and hold Publisher (and its employees, affiliate and agents) harmless from, all liability, claims, demands, suits, or causes of action, whether or not partially attributable to the negligence of Publisher, and will pay all expenses, including reasonable attorneys’ fees, settlements and/or judgments incurred by Publisher in the defense thereof, arising out of Customer’s breach or alleged breach of the foregoing requirements.

SEM Additional Terms and Conditions
1. Introduction. These SEM Additional Terms and Conditions are incorporated into and form a part of the agreement between Customer and Publisher applicable to the SEM Internet Advertising Services (“Services”) to be provided by Publisher to Customer. In the event of any conflict between these Additional Terms and Conditions and the terms and conditions set forth in the agreement between Customer and Publisher, these Additional Terms and Conditions shall be controlling.
2. Policies. Publisher reserves the right to amend these Additional Terms and Conditions and to establish and revise its standards, policies, practices, specifications, technical requirements and schedules with respect to the Services (collectively, the “Publisher Policies”). Customer agrees that a change in Publisher Policies (including the standards, practices or policies of any third parties on whose website or network Customer’s Advertising (the “Advertising”) may be published or linked by or through Publisher (the “SEM Network Sites”) pursuant to the license granted in Section 6) shall not entitle Customer to any reduction in the amounts payable for the Services by Customer to Publisher.
3. Payment Terms. Customer agrees to pay for the Services as provided in the Agreement. In the event Customer has authorized payment to Publisher by automatic debit to Customer’s credit card or checking account, such authorization will remain in effect until 30 days following the later to occur of (a) expiration of Customer’s SEM Campaign or (b) Publisher’s receipt of Customer’s written notice of termination of such authorization. The Agreement provides, for each SEM Campaign, a monthly maximum amount for charges to Customer’s account, subject to the provisions below. When Customer purchases a SEM Campaign, Customer authorizes Publisher to charge Customer, under the payment method agreed to by Customer and Publisher, the monthly maximum amount for each month of the SEM Campaign. Customer understands that Publisher shall have the right to end all of Customer’s Advertising at any time when Customer has a debit balance with Publisher. If Customer’s SEM Campaign does not fully exhaust Customer’s available balance in any month, the remainder will be credited to Customer’s account for the following month.
4. Automatic Renewal. Campaign duration will renew automatically until Customer gives Publisher notice in writing to discontinue such Campaign (see Termination, Section 5). Billing for automatic renewal Campaigns is as follows: (i) if Customer is paying by automatic debit to credit card or checking account, Campaign budget will be charged to Customer’s credit card or checking account, and Campaign duration will be renewed, in monthly increments fifteen (15) days prior to expiration of the then-current Campaign; (ii) in all other cases, Campaign budget will be billed in advance in monthly increments and Campaign duration will be renewed in monthly increments thirty (30) days prior to expiration of current quarter.
5. Termination. Customer may cancel the Services effective after the initial six (3) months of Services on twenty (20) days prior written notice to Publisher, as provided in the Agreement. Customer acknowledges that Publisher shall retain any deposit or payments already made, which will be applied to Customer’s current SEM Campaign until such funds are depleted. Customer understands that at no time will cash be refunded upon cancellation or budget change to Customer’s SEM Campaign.
6. Advertising Content and Intellectual Property Rights. All tangible and intangible works of any kind (including, without limitation, text, graphics, images, illustrations, artwork, maps, photographs, fonts, visual and audio recordings, websites, software, codes, HTML and other content, in whatever form or media) designed, developed, created or procured by Publisher in connection with any Advertising or Services will be the sole and exclusive property of Publisher, except for: (i) “Customer Content,” which means all content that Customer provides to Publisher, including, without limitation, listing information, any trade name, trademark, trade secret, service mark, copyright, patent or other intellectual property right, any URL or domain name, any content contained on any website referenced to or linked to by any Advertising, and any required disclosure, explanation, rule, term or condition of use related to any Advertising and (ii) any content that Publisher licenses from a third party content provider for use in connection with such Advertising or Service, including, without limitation, graphics, text and photographs (collectively, “Third Party Content”). The use of any and all Third Party Content will be subject to all restrictions and obligations imposed by the third party provider of such content (“Third Party Restrictions”). Customer agrees that Customer will produce and deliver any and all Customer Content in accordance with all applicable specifications, schedules, guidelines, procedures, deadlines, format and technical requirements as Publisher may establish from time to time (collectively, the “Publisher Schedules”). Customer acknowledges that Customer’s failure to comply with any Publisher Schedule may cause publication of Advertising or performance of Services to be delayed or refused and Customer agrees that Publisher will have no liability for any such delay or refusal. If Publisher determines, in the exercise of its sole discretion, that Customer has violated Customer’s obligation to comply with the Publisher Schedules, then Publisher may temporarily and/or permanently suspend its provision of, and Customer’s access to and use of, any Advertising and any website developed or to be developed for Customer by Publisher (a “Publisher-Developed Website”), in whole or in part, without prior notice. Customer assumes sole responsibility for (i) the protection of the trade names, trademarks, trade secrets, service marks, copyrights, patents and other intellectual property rights in any Customer Content appearing in Advertising or on a Publisher-Developed Website; (ii) conducting any copyright and trademark searches and other similar activities which may be necessary in relation to any domain name contained in Customer Content (including those that Publisher may register for Customer); and (iii) including appropriate copyright and trademark notices with Customer Content. Customer agrees that Publisher will have the continuing right, in the exercise of its sole discretion, to review, select from or among, revise or reject any Customer Content for any reason, including but not limited to unsatisfactory technical quality, inconsistency with any Publisher Policies (as defined in Section 2), or non-compliance with the Agreement. Notwithstanding such right, Publisher will have no liability whatsoever to Customer or any third party for any Customer Content included in any Advertising and Customer shall be solely and exclusively liable therefore. Publisher makes no representation, warranty or guarantee, express or implied, concerning the success or results of any Advertising or Service or concerning the number of people who will view an item of Advertising. Customer hereby grants to Publisher a perpetual, royalty-free, sub-licensable, non-exclusive right and license to use, copy, record, modify, display, publish, perform, prepare derivate works based on and distribute (for Publisher’s sole benefit and in any form or media now known or hereafter developed, and in any and all languages) Customer Content: (i) in connection with the design, development, creation, display and publication of the Advertising (or any derivative thereof); (ii) in connection with Publisher’s provision of Services; and (iii) in any Publisher marketing or promotional materials. Without limiting the generality of the foregoing, Publisher shall have the right (i) to sub-license to third parties any or all of the rights afforded to Publisher in the preceding sentence and (ii) to license to third parties the right to use, copy, record, modify, display, publish, perform and distribute the Advertising (and any portions thereof) in any form or media now known or hereafter developed, subject to (a) any Third Party Restrictions governing any Third Party Content contained in the Advertising and (b) such other terms and conditions as Publisher may deem appropriate. Publisher and its third party sub-licensees may use any presently existing and future means of communication or transmission in the exercise of any of the rights and licenses granted above.
7. Disclaimer and Limitation of Liability. PUBLISHER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. PUBLISHER DISCLAIMS ALL GUARANTEES REGARDING POSITIONING OR THE LEVELS OR TIMING OF: (I) COSTS PER CLICK, (II) CLICK THROUGH RATES, (III) DELIVERY OF ANY IMPRESSIONS ON ANY SEM NETWORK SITES, (IV) CLICKS, (V) CONVERSIONS FOR ANY ADS, (VI) CALLS, OR (VII) COSTS PER CALL. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER: (a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (b) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO PUBLISHER BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE CLAIM. REMEDIES SET FORTH IN THIS SECTION 7 SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIMS CUSTOMER MAY HAVE UNDER THE AGREEMENT. THE ESSENTIAL PURPOSE OF THIS SECTION 7 IS TO LIMIT THE POTENTIAL LIABILITY OF PUBLISHER ARISING OUT OF THE AGREEMENT.
8. Indemnification. Customer shall indemnify and defend Publisher, its agents, affiliates, SEM NETWORK SITES, and licensors from all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees and expenses, and third party claim or liability (collectively, “Liabilities”) arising out of Customer’s use of the Services or Customer’s breach of the Agreement.
9. Access. For purposes of the Agreement, all Web pages that are owned, operated or hosted by or for Publisher in connection with the Services are referred to herein as the “Publisher Websites.” During the Term, Customer is authorized to access and use the Publisher Websites and the content therein and data obtained there from solely for internal use to manage Customer’s account(s) for which such content or data directly relates and will not disseminate any of this information to third parties, and to conduct searches for Customer’s own internal use provided that Customer does not violate the Agreement. Customer shall not disclose or make available passwords or access codes related to Customer’s account(s) with Publisher. Customer agrees that Customer will not use any automated means, including agents, robots, scripts, or spiders, to access or manage Customer’s account with Publisher or to monitor or copy the Publisher Websites or the content contained therein except those automated means expressly made available by Publisher to Customer. Customer understands that Customer listings may be distributed by Publisher based upon certain user targeting initiatives.
10. Customer Website. Customer agrees that Publisher is not responsible for any aspect of Websites owned or operated by Customer or any third party. Customer grants Publisher permission to mirror their Websites and/or create Websites on Customer’s behalf. Customer acknowledges that changes to Customer’s Websites can cause problems to Publisher’s tracking technologies, therefore, Customer agrees to contact Publisher in advance regarding changes to Customer’s Website, Website content, or Website URL.
11. Customer’s Additional Representations and Warranties. Customer represents, warrants and covenants that Customer has the necessary rights to provide all information provided under the Agreement (including all content, data, data feeds, listings, titles, URLs, descriptions and, if applicable, selected keywords) for use as described in the Agreement, and that all such information and all claims, statements, products and services contained or referenced therein and in the Website(s) to which it links: (a) do not violate any law, statute, ordinance, treaty or regulation or policy or guideline of Publisher; (b) do not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) do not breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) are not false, deceptive or misleading; (e) are not defamatory, libelous, slanderous or threatening; and (f) will be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept or expropriate any system data or personal information.
Force Majeure. Publisher shall not be liable for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond Publisher’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, power outages, supply shortages or the failure of any third party to perform any commitment relating to the production or delivery of any equipment or material required for Publisher to perform its obligations hereunder.